Wrongful Death

Drunken Student’s Dash Into The Gorge Will Go To Trial

September 2, 2013 | by Michael Bersani

I came across an article recently in the New York Law Journal titled “Drunken Run Could Leave Cornell Liable for Fatal Fall”. It’s about a case judge Ramsey (Ithaca, Tompkins County) recently decided where a drunken, and possibly stoned, Cornell University student suddenly bolted from the friends he was walking with on campus, ran down a marked hiking trail, departed from the trail, ran through the woods, hurdled a split-rail fence, and plunged to his death into the 200-foot gorge below. (The trail is appropriately named “Fall Creek Gorge trail”.)

Cornell moved for summary judgment (to have the case dismissed) based in part on New York’s General Obligations Law §9-103, which says landowners who allow the public to use their property for recreational purposes without charge are generally immune from liability. This law was enacted years ago to encourage landowners to open their fields and woods to hikers, bikers, hunters and others.

Judge Ramsey denied the motion and allowed the case to go to trial. The Judge reasoned that General Obligations Law § 9-103 grants immunity only for recreational activities, such as hiking, and here the kid was not “hiking”. The judge relied on a definition of “hiking” in the Department of Environmental Conservation’s regulations, which says hiking is “walking through trees for pleasure or exercise”. Here the kid was not “walking for pleasure”, the judge said, but rather running wildly through the woods in the middle of the night for unknown reasons.

Judge Admits He Is Wrong!

August 31, 2013 | by Michael Bersani

Judges, like most people, have a hard time admitting they’re wrong. Well, maybe even a harder time than most people. That black robe is an ego-inflater. A lowly lawyer gets elected, dons the robe and — voila! — he is suddenly addressed as “your honor”. People stand up when he walks into a room. You get the picture.

That’s why an article in the New York Law Journal — titled “Judge Admits Mistake and Slashes Damages” caught my eye. The article is about a judge who admitted he was wrong without having to be told so by an appellate court. He said his original decision – which awarded $1 million to the children of a deceased medical malpractice victim as compensation for their lost future financial support and parental guidance – was “misinformed”, and then slashed the award down to $150,000.

Ouch kids!

CNY Injury Lawyer Has The Boston Marathon Blues — No True Justice

April 16, 2013 | by Michael Bersani

There is no true justice on this earth. Believe me, I’m in the justice business, so I know. And it’s not our fault. Our justice system, even the much decried personal injury law system, does the best it can. But it still falls short.

Take the Boston Marathon explosions. We don’t know who did it yet, but let’s assume they’re caught and end up in jail or on death row. Can they be forced to compensate their victims or their surviving family members for their life-long wage loss, medical expenses, pain and suffering, etc.? Hell no. I can almost guaranty it. Why not? Well, if the bad guys are homegrown (a la Timothy McVeigh), they will have shallow pockets. They are crackpots with nothing to lose. No big bank accounts to go after. On the other hand, if the terrorists turn out to be foreign operatives (a la Bin Ladin), they may have assets, but they will be hidden away in some remote spider hole half way around the world. You can never get to them.

That’s why it is unlikely that the victims will even bother suing them. Instead, if they choose to sue anyone at all for their personal injuries, it will probably be the local companies or officials who, through security lapses or other negligence, may have allowed the attacks to happen. I am not saying there were any security lapses — in fact there probably were not. This kind of attack is probably impossible to prevent. But if there were security lapses that allowed this to happen, then those responsible would be targets worth going after because they would likely have insurance or assets within reach.

A Central NY Legal Malpractice Case Explained

January 11, 2013 | by Michael Bersani

Just in case you were wondering how a New York legal malpractice case works (come on, admit it, you were wondering about that all day!), I have a “case study” for you.

I recently sued a lawyer on behalf of a widow and her child. I took over their case after the lawyer had mishandled it. The facts of the mishandled case went like this (in simplified form): a public official had, through his negligence, killed the widow’s husband, but before he died, he went through a terrible amount of agony and suffering. This meant that the widow had two claims:

One claim was for “wrongful death” (“WD”), which mainly means a suit for lost income. The concept of the WD suit is that, had the widow’s husband not been killed, he would have continued supporting her and their children, but now he was dead, and dead men don’t pay the bills.

Central And Syracuse NY Wrongful Death Lawyer’s Firefighter Case Finally Settles

June 4, 2012 | by Michael Bersani

Just before jury selection a few months ago, I tentatively settled a complex Syracuse New York wrongful death case I was about to try. For the settlement to be final, we needed Onondaga County’s legislature to approve it, and several layers of workers’ compensation approval, too. We finally got the last stamp of approval last week.

The case, which has bounced its way through the court system for more than 8 years, and went up on appeal twice, generated a lot of press, not only locally, but nationally, especially in firefighter publications. It is believed to be the only case where a court has ruled that a firefighter, and his or her employer, can be held liable for negligently issuing firefighting instructions or orders that end up killing or injuring another firefighter.

Yes, I am proud of this win. It took years of hard work, innovative legal arguments, the scaling of the high and thorny firefighter “red wall of silence”, untold hours of preparation (ask my wife and kids!) and, of course, a large dose good luck, too. This blog post is a kind of “scrape book” for the case, and that’s why I am listing below a few of the headlines this case generated over the years (you can read the full articles by clicking the headlines):

Cornell University Student Suicides – Can Cornell Be Held Liable?

March 27, 2012 | by Michael Bersani

Anyone familiar with Ithaca is also familiar with the ubiquitous bumper sticker and City slogan “Ithaca Is Gorges”. Bridges span those gorges, right on or near Cornell University’s campus, and students traverse those bridges by foot on their way to and from classes and town. When you combine Ithaca’s gloomy climate with the Ivy League pressure cooker, it’s no surprise that many of those students (a Cornell study says about 15%) frequently contemplate suicide, including jumping from the bridges. And over the years, many have! More specifically, from 1990 to 2010, there were 29 suicide attempts, 27 of which were successful, on the seven bridges located on or near campus.

Cornell was concerned enough about the bridges’ magnet-like pull on suicide contemplators so as to undertake anti-suicide bridge renovations in 2006 or so. At that time a virtually suicide-proof alteration — the installation of nets under the bridge — was rejected apparently because it would tarnish the scenery. Instead Cornell took half-measures, like building the parapets of the bridges a bit higher, and curving them somewhat. When several more kids threw themselves to their death from those same bridges, Cornell did an about face and is now implementing the net concept.

But in the meantime, the parents of one of those recent suicides have brought a New York wrongful death case against Cornell, and the City of Ithaca as owner of the bridge in question, alleging, basically, that they should have gotten it right the first time.

New York Health And Fitness Clubs Beware: You Must USE Those AED’s!

February 7, 2012 | by Michael Bersani

One of New York’s appellate courts (Second Department) recently held that health and fitness clubs in New York State must actually use automated external defibrillators (AEDs) when necessary, and not just have them available. If they don’t, a heart attack victim can sue them for failing to act. You can read the case here.

Since I am both a Central New York personal injury and wrongful death lawyer, and am on the Board of the Auburn, New York YMCA (former president of the board), I took a keen interest in this ruling. I also immediately informed the Y’s CEO about this case. After all, it’s one thing to require that health clubs have such devices available, but quite another to require that staff actually make a judgment call about when and whether to actually use them, and to be subject to wrongful death lawsuits if they fail to act properly.

Here are the facts of the case before the court: A racquetball player at a fitness club collapsed, a fellow player reported it promptly to the front desk, and the front desk immediately called 911. While they waited for the ambulance, several employees, with AED in hand, hovered over the stricken player, checking his pulse, but they never actually used the AED. The ambulance arrived in only a few minutes later, which may explain why they never used the AED. But the guy died at the hospital, and his family blamed the fitness club for not using the defibrillator.

Syracuse New York Wrongful Death Trial Preparation

January 20, 2012 | by Michael Bersani

I have a Syracuse New York wrongful death trial coming up in about six weeks. Six weeks may seem like a long time to you, but for preparing a complex trial, it is not. I started gearing up a few weeks ago.

The first thing I do is create a “to do” list for the trial preparation. As I get things done on my list, it feels good to cross them off. My list gets shorter and shorter.

In this case, my “to do” list is still quite long. There will be, I believe, more than 30 witnesses. I have to prepare “direct examinations” of the witnesses I am going to call, and “cross-examinations” of the ones I expect my opponents to call. And you don’t just “wing it” up there. No, that’s a recipe for disaster. You have to plan out carefully every line of questioning, and have exhibits and deposition transcripts ready to confront any witness who strays from the truth!

How Much Are The Mentally Disableds’ Lives Worth In New York (Hint: ZERO!)

November 7, 2011 | by Michael Bersani

Just read a great article in the New York Times about developmentally disabled people in New York State care, or in the care of not-for-profit homes charged by the State to care for them, who die for “reasons other than natural causes”. Check out the stats: One in six such deaths in the past decade have been chalked up to “unnatural” or “unknown” causes. Other states, like Connecticut and Massachusetts for example, count only 1 in 25 such deaths.

The Times, God bless their soul, undertook its own analysis of death records, to find out just what these poor folks were dying from. What they found is very disturbing: Many of these deaths result from errors and preventable deaths, such as drowning in bath tubs where the disabled were not supposed to be left alone in the tub, or choking on food when they were not supposed to be left alone with food; or falling down stairs when they were not supposed to be navigating stairs on their own. Some of the mentally disabled simply ran away, repeatedly, until they died out on their own.

The Times further found that these preventable deaths rarely resulted in measures being implemented to prevent the same mistakes from recurring.

What is a “social Conscience Lawsuit”? Syracuse New York Personal Injury Lawyer Explains.

July 3, 2011 | by Michael Bersani

People sue for different reasons, and usually for a combination of reasons. When accident victims hire me to file a New York personal injury lawsuit, they often seem apologetic for having to sue, explaining to me, “I’m not the suing type, but . . .”.

Usually their voice turns a little angry after the “but”, as they explain the reason they must sue. Often it is because the person or company that injured them didn’t seem to give a damn about their safety or did not even apologize. They want to make them pay for their wrong.

Very, very often people sue because they have no choice; they can’t work and can’t pay the medical bills, and they need to sue just to stay afloat.